Two cases that could play a pivotal role in determining how well skilled nursing providers are protected by a federal COVID shield law are headed for important federal court dates.

Oral arguments are scheduled for Nov. 15 in the only long-term care COVID case currently on appeal at the federal level. In the Garcia case, survivors of a resident who died at a Welltower-owned Sunrise Senior Living building in California sued, arguing staff failed to take sufficient measures to protect him.

A lower court dismissed the case, finding the Public Readiness and Emergency Preparedness, or PREP, Act completely preempted such negligence claims. How the Ninth Circuit proceeds carries enormous weight for skilled nursing operators who have so far been fairly well shielded from costly COVID-related legal challenges.

“Most of the cases had been removed to federal court, with the hopes that the federal courts would interpret the federal statute to provide that protection,” said Tara Clayton, JD, senior vice president of risk management firm Marsh’s Senior Living & LTC Industry Practice.

In all those decided except Garcia, however, federal courts instead said they were not the venue to hear such cases. But states can and are upholding liability protections the PREP Act. Clayton said legal discovery associated with some cases currently winding their way through state courts is focusing on covered countermeasures and precautions providers have used that might support a request for dismissal.

For now though, it’s a “wait and see” as to whether a decision in the Ninth Circuit could force a higher level decision and how that might affect providers nationwide, Clayton said. A previous Ninth Court ruling remanded another PREP case back to state court, which could show the court’s likely path here too.

At a presentation at the LeadingAge Meeting in Denver last week, Clayton said she and most of the healthcare legal world also are watching for potential Supreme Court action on PREP in November.

Glenhaven Healthcare in August asked the Supreme Court to take up its case, and the court could do so —  or decline to get involved — as early as November. The Court traditionally acts on a writ of certiorari within six weeks, according to the Court’s media guide, agreeing to consider just a few hundred of 7,000 or more requests annually.

Before the top court

Glenhaven, an independent nursing home, argues that a ruling in favor of preemptive immunity from a federal court is critical to the country’s fight against pandemics and bioterrorism, since the PREP Act can be reissued in response to future outbreaks and threats.

“This Court’s review is urgently needed to relieve front-line responders from the crushing burden of COVID-19-response litigation that the PREP Act was designed to prevent,” Glenhaven argues in its writ of certiorari. “The PREP Act sought to ensure consistent, uniform decisions on the scope of immunity — and liability. But that uniformity depends on claims against front-line responders being litigated in federal court — and specifically in the court that Congress designated.

It warned that without intervention by the Supreme Court, 50 different state-court systems could adopt 50 different interpretations. In a brief in support of Glen Haven’s request, the Atlantic Legal Foundation also argued that removal of COVID liability suits to federal court “is critical to achievement of the PREP Act’s objectives.”

“The PREP Act mandates immunity from suit and liability to facilitate a unified, whole-of-nation response to public health emergencies such as the COVID-19 pandemic,” foundation attorneys wrote. “A whole-of-nation response cannot be achieved without uniform interpretation and application of the PREP Act’s immunity provision and additional legal protections. The continuing threat of state-court COVID-19 liability suits will deter healthcare facilities and workers from providing essential medical services during [future] public health emergencies.”

Clayton noted, however, that the PREP Act remains a “strong defense” in states. Some 41 states also had passed emergency declarations limiting healthcare providers’ liability during the pandemic, and that helped keep case numbers “lower than initially feared,” Clayton said.

State concerns remain

But once those emergency declarations and related protections lapse, “Who knows really what the ultimate outcome is going to be?” Clayton asked.

She called a couple of cases with high-dollar settlement aberrations, noting that they involved state-run facilities with dozens of victims in Massachusetts and New Jersey. Corey Kallheim, former vice president of legal affairs for LeadingAge and now a vice president of legal at Covenant Living, said providers should not see such “scary” numbers and rush to settle claims.

In fact, Clayton said most insurance carriers were continuing to put up aggressive defenses against COVID claims, and they are working hard to find protections under the PREP Act and state rules when plaintiff’s attorneys argue that they’re bringing non-COVID cases.

“They’re trying to stay away from COVID because they’re not sure how that’s going to go because of immunity in that state or for other reasons” added Glenn Fox, a shareholder with Saul Ewing, noting that such attempts to disguise COVID cases as run-on-the-mill negligence claims may be suppressing the overall number of COVID claims being reported against healthcare providers.

Fox said it was critical for providers to keep up their COVID task forces and maintain and ensure compliance with policies regarding infection control now. While the courts have been fairly kind to healthcare organizations so far, more might be open to claims of willful negligence as more is known about how to prevent and treat COVID.

“Be looking and be vigilant as to what’s happening with COVID because we are all on notice today,” he said. “If we let our guard down now and we have this come through our facility again, I don’t think the courts going forward are going to look as kindly on us because we should know how to handle this thing,” he said.